RAILSWARE PRODUCTS STUDIO , INCLLC.
DATA PROCESSING ADDENDUM
Effective: June 17August 21, 20212023
1. INTRODUCTION
This GDPR Data Processing Addendum (“DPA”, “Data Processing Addendum’, “Addendum”) forms part of the master Terms of Service Agreement available at https://jirachecklist.com (“Agreement”), entered into by and between _____________________________________________________ (“You”, or “Customer”, “Controller”) and Railsware Products Studio , IncLLC. (“Smart Checklist”“TitanApps”, “Processor”), in accordance to which Customer has accessed Smart Checklist’s TitanApps’s Application Services as outlined in the applicable Data Processing Agreement (DPA). The main goal of this DPA is to demonstrate agreement between the two parties in terms of the processing of Personal Data in compliance with the requirements of Data Protection Legislation as provided below.
...
“Standard Contractual Clauses” means Annex 1, attached to and forming part of this DPA pursuant to the European Commission Implementing Decision of 5 February 2010 (EU) 2021/914 of 4 June 2021 on standard contractual clauses for the transfer of personal data to processors established in third countries under Directive 95/46/ECpursuant to Regulation (EU) 2016/679 of the European Parliament and of the Council.
“Sub-processor” means any person (including any third party, but excluding Smart Checklist TitanApps employees) appointed by or on behalf of Smart Checklist TitanApps to process data in connection with the Agreement.
“Railsware Affiliates” include affiliates, and related and associated persons of Railsware Products Studio , IncLLC.
3. DATA PROCESSING
3.1. Types of Information
Smart Checklist TitanApps collects Personal (see the Privacy Policy Privacy Policy ) in order to leverage Smart Checklist TitanApps Application functionality to Customers, as well as offer them high-quality user experience while they browse Smart Checklist TitanApps website.
3.2. Purpose of the Processing
Smart Checklist TitanApps processes Personal Information to perform its obligations under the Terms of Service Agreement. In no event will Smart Checklist TitanApps process any Personal Data for its own purpose or those of any third party.
...
4. OBLIGATIONS OF PROCESSOR
4.1. Data processing
Smart Checklist TitanApps as the Processor agrees and warrants to process Personal Data only on behalf of the Controller and in compliance with its instructions and the Data Processing Addendum unless the instructions are unlawful; if it cannot provide such compliance for whatever reasons, it agrees to inform promptly the Controller of its inability to comply, in which case the Controller is entitled to suspend the transfer of data and/or terminate the contract.
4.2. Security
Smart Checklist TitanApps as the Processor shall take the appropriate technical and organizational measures (specified in Appendix 2) to adequately protect Personal Data against accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to Personal Data.
4.3. Confidentiality
Smart Checklist TitanApps as the Processor shall ensure that any personnel whom we authorize to process Personal Data on Smart Checklist’s TitanApps’s behalf is subject to confidentiality obligations with respect to that Personal Data. The undertaking to confidentiality shall continue after the termination of the above-entitled activities.
Smart Checklist TitanApps ensures that its personnel who access Personal Data are subject to confidentiality obligations that restrict their ability to disclose Customer Personal Data.
4.4. Personal Data Breaches
Smart Checklist TitanApps as the Processor is obliged to notify the Controller about a Personal Data Breach not later than 72 hours after having become aware of it.
4.5. Inquiries from the Controller
Smart Checklist TitanApps as the Processor will deal promptly and properly with all inquiries from the Controller relating to its processing of Personal Data subject to the transfer and abide by the advice of the supervisory authority with regard to the processing of the data transferred.
4.6. Data Subject Requests
Smart Checklist TitanApps as the Processor shall
(i) inform the Controller if it receives a request from a Data Subject under any Applicable Law with respect to Controller Personal Data, and
(ii) not respond to the request except: on the written instructions of the applicable Controller Group Member; or as required by Applicable Laws to which the Contracted Processor is subject, in which case Processor shall (to the extent permitted by Applicable Laws) inform Controller of that legal requirement before the Contracted Processor responds to the request.
4.7. Sub-processors
Smart Checklist TitanApps as the Processor may hire other companies to provide limited services on its behalf. Any such sub-processors will be permitted to process Personal Data only to deliver the services Smart Checklist TitanApps has retained them to provide, and they shall be prohibited from using Personal Data for any other purpose. Smart Checklist TitanApps remains responsible for its sub-processors’ compliance with the obligations of this DPA. Any subcontractors to whom Smart Checklist TitanApps transfers Personal Data will have entered into written agreements with Smart Checklist TitanApps requiring that they abide by terms substantially similar to this DPA.
A list of subcontractors is available to the Customer (article 7 of the Privacy Policy ). If the Controller requires prior notification of any updates to the list of sub-processors, the Controller may request such notification in writing by emailing smartchecklist@railsware.com. Smart Checklist TitanApps will update the list within seventy-two (72) hours of any such notification if Customer does not legitimately object within that time frame. Legitimate objections must contain reasonable and documented grounds relating to a subcontractor’s non-compliance with applicable Data Protection Legislation. If in Smart Checklist’s TitanApps’s reasonable opinion, such objections are not legitimate, the Controller may, by providing written notice to Smart ChecklistTitanApps, terminate the Agreement.
4.8. Notifications
Smart Checklist TitanApps as the Processor will promptly notify the Controller about:
any legally binding request for disclosure of the Personal Data by a law enforcement authority unless otherwise prohibited, such as a prohibition under criminal law to preserve the confidentiality of a law enforcement investigation;
any accidental or unauthorised unauthorized access; and
any request received directly from the data subjects without responding to that request unless it has been otherwise authorised to do so.
...
If the Controller is required to carry out a Data Protection Impact Assessment or a subsequent consultation within the meaning of Articles 35 and 36 of the GDPR, the Data Processor will cooperate with such, in the event that one is necessary and following a reasonable request to do so.
4.10. Data Transfers
Smart Checklist TitanApps customers acknowledge and agree that, in connection with the performance of the services under the Agreement, Personal Data may be transferred outside of the European Union (EU) and the European Economic Area (EEA). While transferring the data, Smart Checklist TitanApps takes the necessary measures to safeguard the activity in general, and the data subjects in particular to ensure an appropriate level of protection for their fundamental rights. This Privacy Policy shall apply even if Personal Information is transferred or accessed from other countries.
...
Upon termination or expiration of the Agreement or upon Customer’s request, Smart Checklist TitanApps will delete or return to Customer all individual- and account-related Personal Data that is in its possession or control (including any Data subcontracted to a third party for processing). This requirement will not apply to the extent that Smart Checklist TitanApps is required by any EU (or any EU Member State) law to retain some or all of the Data, in which event Smart Checklist TitanApps will isolate and protect the Data from any further processing except to the extent required by such law.
5. COMPLIANCE
Smart Checklist TitanApps shall, upon Customer request (not to exceed one request per calendar year) by email to smartchecklist@railsware.com, demonstrate compliance with the obligations set out in this DPA in writing. If the information Smart Checklist TitanApps provides, in Customer’s reasonable judgement, is not sufficient to confirm Smart Checklist’s TitanApps’s compliance with the terms of this Agreement, then the GDPR compliant Customer or an accredited and GDPR compliant third-party audit firm that is not a competitor of Smart Checklist TitanApps and other Railsware Affiliates agreed to by both Customer and Smart Checklist TitanApps may audit Smart Checklist’s TitanApps’s compliance with the terms of this Agreement during regular business hours in a manner that is not disruptive to Smart Checklist’s TitanApps’s business, upon reasonable advance notice to Smart Checklist TitanApps of no less than 60 days and subject to reasonable confidentiality procedures. The Controller is responsible for all costs and fees related to such audit, including all reasonable costs and fees for any and all time Smart Checklist TitanApps expends for any such audit, in addition to the rates for support services performed by Smart Checklist TitanApps and any expenses incurred by Smart Checklist TitanApps in complying with this Agreement. Before the commencement of any such audit, the Controller and Smart Checklist TitanApps shall mutually agree upon the timing, duration and scope of the audit, which shall not involve physical access to the servers from which the data processing services are provided. You shall promptly notify Smart Checklist TitanApps of information regarding any non-compliance discovered during the course of an audit. The Controller may not audit Smart Checklist TitanApps more than once annually.
6. GOVERNING LAW
...
Upon written notice to the Controller, Smart Checklist TitanApps may revise this DPA from time to time. Controller, in turn, will review the suggested amendments and respond within fourteen (14) days after receipt of the notice.
If the Controller does not agree to any changes to the Addendum which Processor considers to be critical, the Controller should not continue to use the Smart Checklist TitanApps application.
On behalf of the Controller:
...
Name (written out in full): Alessandra Silveira
Position: President Director
Address: 118 Coalpit Hill Road Danbury, CT 06810 US
...
Railsware Products Studio , IncLLC. (the “data importer”)
each a “party”; together “the parties”,
...
Clause 3
Third-party beneficiary clause
The data subject can enforce against the data exporter this Clause, Clause 4(b) to (i), Clause 5(a) to (e), and (g) to (j), Clause 6(1) and (2), Clause 7, Clause 8(2), and Clauses 9 to 12 as third-party beneficiary.
The data subject can enforce against the data importer this Clause, Clause 5(a) to (e) and (g), Clause 6, Clause 7, Clause 8(2), and Clauses 9 to 12, in cases where the data exporter has factually disappeared or has ceased to exist in law unless any successor entity has assumed the entire legal obligations of the data exporter by contract or by operation of law, as a result of which it takes on the rights and obligations of the data exporter, in which case the data subject can enforce them against such entity.
The data subject can enforce against the subprocessor this Clause, Clause 5(a) to (e) and (g), Clause 6, Clause 7, Clause 8(2), and Clauses 9 to 12, in cases where both the data exporter and the data importer have factually disappeared or ceased to exist in law or have become insolvent, unless any successor entity has assumed the entire legal obligations of the data exporter by contract or by operation of law as a result of which it takes on the rights and obligations of the data exporter, in which case the data subject can enforce them against such entity. Such third-party liability of the subprocessor shall be limited to its own processing operations under the Clauses.
The parties do not object to a data subject being represented by an association or other body if the data subject so expressly wishes and if permitted by national law.
Clause 4
Obligations of the data exporter
...
(j) to send promptly a copy of any subprocessor agreement it concludes under the Clauses to the data exporter.
Clause 6
Liability
The parties agree that any data subject, who has suffered damage as a result of any breach of the obligations referred to in Clause 3 or in Clause 11 by any party or subprocessor is entitled to receive compensation from the data exporter for the damage suffered.
If a data subject is not able to bring a claim for compensation in accordance with paragraph 1 against the data exporter, arising out of a breach by the data importer or his subprocessor of any of their obligations referred to in Clause 3 or in Clause 11, because the data exporter has factually disappeared or ceased to exist in law or has become insolvent, the data importer agrees that the data subject may issue a claim against the data importer as if it were the data exporter, unless any successor entity has assumed the entire legal obligations of the data exporter by contract of by operation of law, in which case the data subject can enforce its rights against such entity. The data importer may not rely on a breach by a subprocessor of its obligations in order to avoid its own liabilities.
If a data subject is not able to bring a claim against the data exporter or the data importer referred to in paragraphs 1 and 2, arising out of a breach by the subprocessor of any of their obligations referred to in Clause 3 or in Clause 11 because both the data exporter and the data importer have factually disappeared or ceased to exist in law or have become insolvent, the subprocessor agrees that the data subject may issue a claim against the data subprocessor with regard to its own processing operations under the Clauses as if it were the data exporter or the data importer, unless any successor entity has assumed the entire legal obligations of the data exporter or data importer by contract or by operation of law, in which case the data subject can enforce its rights against such entity. The liability of the subprocessor shall be limited to its own processing operations under the Clauses.
Clause 7
Mediation and jurisdiction
The data importer agrees that if the data subject invokes against it third-party beneficiary rights and/or claims compensation for damages under the Clauses, the data importer will accept the decision of the data subject:
(a) to refer the dispute to mediation, by an independent person or, where applicable, by the supervisory authority;
(b) to refer the dispute to the courts in the Member State in which the data exporter is established.
The parties agree that the choice made by the data subject will not prejudice its substantive or procedural rights to seek remedies in accordance with other provisions of national or international law.
Clause 8
Cooperation with supervisory authorities
The data exporter agrees to deposit a copy of this contract with the supervisory authority if it so requests or if such deposit is required under the applicable data protection law.
The parties agree that the supervisory authority has the right to conduct an audit of the data importer, and of any subprocessor, which has the same scope and is subject to the same conditions as would apply to an audit of the data exporter under the applicable data protection law.
The data importer shall promptly inform the data exporter about the existence of legislation applicable to it or any subprocessor preventing the conduct of an audit of the data importer, or any subprocessor, pursuant to paragraph 2. In such a case the data exporter shall be entitled to take the measures foreseen in Clause 5 (b).
Clause 9
Governing Law
The Clauses shall be governed by the law of the Member State in which the data exporter is established.
...
The parties undertake not to vary or modify the Clauses. This does not preclude the parties from adding clauses on business related issues where required as long as they do not contradict the Clause.
Clause 11
Subprocessing
The data importer shall not subcontract any of its processing operations performed on behalf of the data exporter under the Clauses without the prior written consent of the data exporter. Where the data importer subcontracts its obligations under the Clauses, with the consent of the data exporter, it shall do so only by way of a written agreement with the subprocessor which imposes the same obligations on the subprocessor as are imposed on the data importer under the Clauses. Where the subprocessor fails to fulfil its data protection obligations under such written agreement the data importer shall remain fully liable to the data exporter for the performance of the subprocessor's obligations under such agreement.
The prior written contract between the data importer and the subprocessor shall also provide for a third-party beneficiary clause as laid down in Clause 3 for cases where the data subject is not able to bring the claim for compensation referred to in paragraph 1 of Clause 6 against the data exporter or the data importer because they have factually disappeared or have ceased to exist in law or have become insolvent and no successor entity has assumed the entire legal obligations of the data exporter or data importer by contract or by operation of law. Such third-party liability of the subprocessor shall be limited to its own processing operations under the Clauses.
The provisions relating to data protection aspects for subprocessing of the contract referred to in paragraph 1 shall be governed by the law of the Member State in which the data exporter is established.
The data exporter shall keep a list of subprocessing agreements concluded under the Clauses and notified by the data importer pursuant to Clause 5 (j), which shall be updated at least once a year. The list shall be available to the data exporter's data protection supervisory authority.
Clause 12
Obligation after the termination of personal data processing services
The parties agree that on the termination of the provision of data processing services, the data importer and the subprocessor shall, at the choice of the data exporter, return all the personal data transferred and the copies thereof to the data exporter or shall destroy all the personal data and certify to the data exporter that it has done so, unless legislation imposed upon the data importer prevents it from returning or destroying all or part of the personal data transferred. In that case, the data importer warrants that it will guarantee the confidentiality of the personal data transferred and will not actively process the personal data transferred anymore.
The data importer and the subprocessor warrant that upon request of the data exporter and/or of the supervisory authority, it will submit its data processing facilities for an audit of the measures referred to in paragraph 1.
On behalf of the Controller:
...
Name (written out in full): Alessandra Silveira
Position: President Director
Address: 118 Coalpit Hill Road Danbury, CT 06810 US
...
The data importer is Railsware Products Studio , IncLLC., a provider of web services.
Data subjects
Authorized Users of Smart Checklist TitanApps Application;
Employees of the Data Exporter;
Consultants of the Data Exporter;
Contractors of the Data Exporter;
Agents of the Data Exporter;
Customers of the Data Exporter; and/or
Third parties with which the Data Exporter conducts business.
...
Processor will maintain reasonable administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of personal data transferred to Processor as described in the Smart ChecklistTitanApps's Security Practices, including but not limited to:
Realization of a regular backup schedule with 3rd Party services (Heroku)
Definition of employees who are granted access.
Implementation of partial access rights for respective Data and functions.
SSL and TLS to transfer all data securely over a computer network.